Superior Consolidated Land Co. v. Nichols

81 Wis. 656 | Wis. | 1892

LyoN, C. J.

The instrument executed by Bardon and Nichols, which is the basis of the action, is the ordinary executory contract for the sale and conveyance of land, with thé exception that, instead of covenanting to pay Bardon a certain sum of money for the lots, Nichols agreed to make certain expenditures and improvements on the lots within a specified time, and. his right to a conveyance thereof was made conditional upon his performing such agreement. The difference is not one of principle. . The parties sustain tbe same relation to each other, have the same interest in the land, and may resort to the same remedies to enforce the agreement in one case as in the other.

Under all the authorities, such relation is that of equitable mortgagor and mortgagee. The mortgagor has only an equitable interest in the land, which, in case of default, may be cut off by a strict foreclosure of the contract. Button v. Schroyer, 5 Wis. 598; Baker v. Beach, 15 Wis. 99; Kimball v. Darling, 32 Wis. 675; London v. Burke, 36 Wis. 378; Northrup v. Trask, 39 Wis. 515.

The argument in support of the demurrer to the complaint goes upon the assumption that this is an action to enforce a forfeiture or right of re-entry for breach, of a condition subsequent, and hence cannot be maintained in equity. This we conceive to be an entire misapprehension of the nature and objects of the action. While the complaint contains averments and demands relief which might be proper in an action to enforce a forfeiture, yet the action is clearly one for a strict foreclosure of the land contract. The complaint contains, all the. averments essential to a valid complaint in such an action, and the appropriate relief is demanded therein. It may be that it shows a waiver by the plaintiff of the right to have the interest of defendants under it declared forfeited, but it does not show any waiver of its right to a strict foreclosure thereof.

The circuit court has power to do full justice between the parties. It may, in the exercise of its discretion, give the defendants further reasonable time to perform the contract, if it seems to the court equitable and just to do so, and it will exert its equitable powers in all proper ways to protect the appellant from wrong; She is confessedly in default. What more favorable terms can she reasonably demand?

By the Court. — The order of the circuit court is affirmed.